TMI Blog2006 (12) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Advocate Commissioner was filed by the appellant. The court allowed the appellant to appoint an architect at his own cost. He, however, failed to comply with the said order. A sale proclamation was issued. The appellant expressed his intention to buy the said property at the valuation made by the Government Valuer. A valuation report was filed by the appellant on 04.05.2005 against which Respondent No.1 filed an objection. The appellant was called upon to deposit 2/3rd of the amount stated in the valuation report. He failed to do so. On or about 21.11.2005, he filed an application expressing his willingness to deposit shares of Respondent Nos. 1 and 2. He also sought for permission to deposit an amount of ₹ 2.5 lakhs. By an order dated 22.11.2005, the Trial Court held that since the property was put on auction sale, the highest bid would be treated to be the best price of the suit property and there was no need for appointment of any valuer to ascertain the market price thereof. Another objection was filed by the appellant stating that in view of the facts and circumstances of the case, he should be allowed to buy the shares of other so-sharers. The said application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure Code, which reads as under : 18. Decree in suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, - (1) if in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54. (2) if and in so far as such decree relates to any other immoveable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required. Preliminary decree declares the rights and liabilities of the parties. However, in a given case a decree may be both preliminary and final. There can be more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree may be said to become final in two ways: (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest court; (ii) when, as regards the court passing the decree, the same stands completely disposed of. It is in the latter sense the word decree is used in Section 2(2) of CPC. The appeal ability of the decree will, therefore, not affect its character as a final decree. The final decree merely carries into fulfilment the preliminary decree. Taking note of the fact that a final decree proceeding is required to be drawn upon a stamped paper, it was observed: The crucial question for consideration is as to when the limitation begins to run for filing an application to pass final decree on stamped papers. There is no direct decision of this Court on this point. Therefore, after hearing counsel at length, we reserve the judgment in the appeal and independently made detailed examination. There is divergence of opinion in the High Courts on this question. We are not oblivious of the fact that a somewhat different view as regards period of limitation provided under Article 136 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the period of limitation in execution of the final decree proceeding there are somewhat different views, but all decisions of this Court clearly state that it is the final decree proceeding which would be executable in nature. Without drawing a final decree proceeding, the court could not have put the property on auction sale. It is true that the house property was found to be an impartible one; but a preliminary decree having been passed, the valuation thereof and final allotment of the property could have been done only in a final decree proceeding. Only when final allotments were made or a determination is made that the property should be put on auction sale, a final decree in respect thereof should have been passed. It is appealable. Only a final decree could be put to execution. A contention was raised that having regard to the conduct of the appellant, we should not interfere, but the appellant herein has raised a jurisdictional question. However, the appellant can be put to terms. The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a property that had been put to auction and despite setting aside of the decree, the court had not interfered with. [See Bombay Dyeing and Mfg. Co. Ltd. Ltd. v. Bombay Environmental Action Group and Others (2006) 3 SCC 459 para 329]. But in this case possession of the property has not been delivered to the auction purchaser. The suit property is a residential house. The auction sale was wholly illegal. The auction purchaser can otherwise be compensated on monetary terms. We, therefore, are of the opinion that in the peculiar facts and circumstances of the case, and with a view to do complete justice to the parties, the appellant should be directed to deposit a sum of ₹ 18 lakhs within four weeks from date before the learned Trial Judge, who shall immediately allow Respondent Nos.1 and 2 to withdraw a sum of ₹ 9 lakhs each towards their shares in the property. The appellant furthermore shall deposit such amount in the court within the aforementioned period towards payment of interest by way of compensation @ 9% p.a. from the date of deposit till the actual payment is made, which would be payable to the auction purchaser, which in our opinion is just and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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